Background checks or pre-employment screening form a common part of the recruitment procedure in almost every company. Employers, in particular those from foreign countries, increasingly often require much more thorough checks of prospective employees rather than merely basic information about the candidates and their work experience, or just testing them in an interview. In practice, employers require proof of a clean criminal record, certificate of good standing and a medical certificate or drug tests. Are these checks allowed under Czech law at all? Let’s take a closer look at employers’ options and restrictions applicable to the pre-employment screening procedure. We should add that these restrictions apply basically not only to job candidates but also to employees and their potential checks during employment.
The process should be viewed from three perspectives: labour legislation, data protection and protection of the personal rights of a potential employee. All of them are closely interconnected.
From the labour law perspective, the general conclusion is that the employer may only require information directly related to employment. The employers are strictly prohibited to require information about the employee’s sexual orientation, origin, trade union membership, membership of political parties or movements, churches or religious societies. It is even prohibited to obtain this type of information through third persons such as specialised agencies. Another example of prohibited information or details is the requirement for employees to provide a finger print or a sample of their handwriting which is not directly related to employment and constitutes inadequate and unjustified interference with the employee’s personal rights.
On the other hand, there is a category of sensitive data which the employer may require and ascertain if there is a material reason for such a requirement following from the type of work to be carried out and if such a requirement is reasonable, for instance if it arises with a view to protection of the employer’s or third party’s property. Such information includes information about pregnancy, family situation and property, and a clean criminal record. Hence, such information cannot be required from all employees but always only upon considering the type of work to be carried out. In line with this, an employer may require information about pregnancy from a female employer who is to carry out physically demanding work which is prohibited for pregnant workers or proof of a clean criminal record for an employee handling large cash amounts.
Employers are basically not limited in any manner in requiring information about work experience, employer’s references or publicly accessible information from media or open profiles in social networks – however even in this case it is necessary to keep in mind the above category of information which may not be required or ascertained by the employer. It is also important that in checking a potential employee, the employer must always proceed in a manner adequate for its objectives, in order to avoid unauthorised interference with the candidate’s personal rights. It is also necessary to comply with the principle of equal treatment and with the ban on discrimination because these are breached quite frequently during the employee selection procedure.
Last but not least we should keep in mind the issue of processing personal data that the employer obtains during the selection procedure. The employer may process personal data that are not to be processed due to a contractual or statutory duty (such as information for registering an employee at public bodies) only with the employee’s consent. When processing personal data, the employer should also:
- process personal data obtained for employee screening only for this purpose;
- treat personal data as confidential information and ensure that they cannot be disclosed. The employer should also ensure access to personal data only for competent persons, such as the HR department;
- inform the employees about their right to access personal data and their right to correct personal data, their right to require explanation if they suspect that by processing their personal data the protection of their privacy rights is breached or that their data are processed in contradiction with legal regulations, their right to require remedying of situations contradicting legal regulations in particular by suspending the processing of their personal data, by correcting, completing or removing them, and their right to withdraw their consent to the processing of their personal data;
- accept measures preventing unauthorised access to personal data by third parties and damage to or destruction of personal data.
It is evident that the recruitment procedure is complex not only from the non-legal perspective of selecting the right candidate but also in terms of legal limitations. The incoherent and not always unambiguous legislation even increases the complexity of this procedure. Because, during the recruitment procedure, the employer may access sensitive data and even interfere with the candidate’s privacy in a certain way, we would recommend taking rather a more conservative approach and require indeed only information relating directly to the potential candidate’s work, while always adhering to the equal treatment and non-discrimination principles.